The Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners

Professor David J. Doorey, Ph.D

York University

David J. Doorey

2

The Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners

Professor David J. Doorey, Ph.D

York University

1. What is the Charter, and What Does it Govern?

2. The Two-Step Charter Analysis a. Step One: Has Government Action Violated a Charter Right or

Freedom? b. Step Two: Is that Infringement Justified in a Free and Democratic

Society? c. The Section 1 “Oakes Test”

3. What Rights and Freedoms Found in the Charter Apply to the

Employment Relationship? a. Freedom of Association [Section 2(d)] b. Freedom of Expression [Section 2(b)] c. Equality Rights [Section 15]

Introduction

One of my favorite lines from an academic book is found in Professor Hugh

Collins’ book, The Employment Contract. He opens the book with this great

statement: “As this is a short book, it has taken a long time to write.”1 I love that

line, because it strikes me too that finding a way to express complex ideas in

precise and short spaces is an art form. This paper is not a piece of art, by any

means. But it is intended to fill a gap in the literature I’ve noticed since I began

teaching labour law to non-law students. It explores how the Canadian Charter

of Rights and Freedoms influences the law of the workplace. Much ink has

been spilt on this subject, but most of it is exceedingly “legalistic” and

mysterious to students only beginning their study of industrial relations, law,

and the Charter.

So my goal is a simple one. It is to try to explain, at a basic introductory

level, what the Charter does, and how it has influenced labour and employment

law, assuming that the reader has no prior background whatsoever. This has 1 H. Collins, The Employment Contract (Oxford U. Press, 2003), v.

3

3

not been easy; I may not have succeeded. The Supreme Court of Canada has

certainly done its best to make the law inaccessible to all but a few constitutional

law experts. But, to cite another of my favorite lines, this time from Gaius

Cassius, “in great attempts, it is glorious even to fail.” Onward we push.

1. What is the Charter, and What Does it Govern?

The Charter of Rights and Freedoms is one of the most important and yet

most misunderstood legal instruments in Canada. The Charter has been part of

the Canadian Constitution since 1982. Here is the first essential point to grasp:

the Charter only governs the actions of governments, not private citizens

and private companies. How do governments ‘act”? Two ways come quickly to

mind: (1) by passing and administering laws and (2) as an employer of its own

employees. When the government acts in these capacities, it must not do so in a

manner that is inconsistent with the Charter’s guarantee of rights and

freedoms. Most Charter cases are targeted at government legislation that is

alleged to be inconsistent with the Charter. However, occasionally the

complaint is that the government as employer has contravened the Charter in

the manner in which it has treated its employees.

The fact that the Charter applies directly to government employers but

not private sector employers creates an odd situation. It means if my employer

is the City of Toronto, the Province of Ontario, or the Government of Canada, for

example, then my employer and my employment contract must comply with the

rules in the Charter. However, if my employer is Walmart or General Motors, or

any other non-government entity, then the Charter does not regulate how my

employer treats me, or the terms of my employment contract. Walmart cannot

violate the Charter rights of its employees, because the Charter does not apply

to Walmart.

Often it is obvious whether an employer is the “government”, but not

always. Occasionally, courts have been asked to decide whether an employer is

“public” on the basis that it receives significant government funding, for

David J. Doorey

4

example, or is highly regulated by the government. Colleges are an example.

They are not ‘the government’ in an obvious sense, but because they receive a

significant amount of public funding and are under significant control of the

provincial governments, the Supreme Court of Canada has ruled that colleges

are government actors for the purposes of the Charter.2 Therefore, in a case

called Lavigne v. OPSEU, the Supreme Court ruled that the Charter applied

directly to a collective agreement between a union and a community college.3

However, universities are not the government, because although universities

also receive public funding, governments have far less direct control over

universities than they do colleges.4

2. The Two-Step Charter Analysis

Before turning to consider what rights and freedoms are protected, and

how Charter litigation has influenced the employment relationship, it will be

useful to provide a basic overview of how the Charter operates in practice.

There is a two-step process for considering whether government action

contravenes the Charter. This process begins when an application is filed that

alleges the government has violated the Charter. This is usually described

colloquially as a “Charter Challenge”.

a. Step One: Has Government Action Infringed a Charter Right or Freedom?

The first step is to decide whether government action contravenes a

protected right or freedom. If it does not, then the Charter doesn’t apply, the

case will be dismissed, and the government’s action confirmed as lawful.

However, if the government’s actions do violate a Charter right or freedom, then

2 Lavigne v. OPSEU , [1991] 2 S.C.R. 211. 3 Ibid. 4 McKinney v. University of Guelph [1990] 3 S.C.R. 229.

5

5

it is necessary to move onto Step 2 (explained below) to determine if the

violation is nevertheless permitted to protect some greater good.

Sometimes, it is obvious that the government has violated a Charter right,

so that the real argument takes place at Step 2 of the process. For example, in

1998, the Ontario government led by Premier Mike Harris introduced a law that

made it illegal for some workers participating in a welfare program to “join a

union”.5 There is no doubt that such a law violates the Charter’s protection of

“freedom of association”, since (as we will see below), the Supreme Court has

recognized since the 1980s that the right to form and join a union is protected

by the Charter.6 If a Charter challenge were commenced against such a law, the

case would probably move directly to Step 2, since the government would likely

concede that Section 2(d) [freedom of association] was infringed by the law.

However, sometimes whether or not government action has violated a

Charter right or freedom is not at all clear. This is because the courts have

filled in the vague meanings of the protections listed in the Charter on a case-by-

case basis. For example, what precisely “freedom of association” in section 2(d)

means has been the subject of over two decades of litigation. Much the same can

be said of the other sections of the Charter that confer rights and freedoms.

Many lawyers have put their children through university on the huge fees paid

them for arguing over the meaning of the Charter.

b. Step Two: Is that Infringement Justified in a Free and Democratic Society?

If the court finds that the government has interfered with a Charter right

or freedom, then we move onto the second step of the analysis. That step is

described in Section 1 of the Charter, which reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

5 An Act to Prevent Unionization (Ontario Works), 1998, c. 17 6 Professional Instutute of the Public Service of Canada v. Northwest Territories (“PiPPs”)

David J. Doorey

6

This section explains that sometimes it is justifiable for a government to violate

someone’s Charter rights. It requires a balancing of interests. Sometimes the

cost to society associated with protecting Charter rights outweighs the benefit to

any individual of having their Charter right affirmed. When that is the case,

Section 1 of the Charter allows a court to uphold the Charter violation in order

to protect the greater good. We say then that Section 1 has “saved” the

government’s violation of the Charter right or freedom.

c. The “Oakes” Section 1 Test

As you can see, the language in Section 1 is very vague about how courts

should undertake this balancing. As a result, it confers a lot of discretion on

judges. In one of the earliest cases after the Charter was enacted, the Supreme

Court created a Section 1 “test” that must be applied whenever this balancing of

interests is performed. That test became known as the “Oakes Test” because

the case in which it was explained was called R. v. Oakes.7 The test has evolved

since then, and developed by many subsequent decisions that have applied it.

However, the basic model remains as defined in Oakes. It is a “proportionality

test”, meaning it guides judges in their assessment of whether the benefit to

society of allowing the Charter violation outweighs the harm associated with

upholding the Charter right.

I said a moment ago that the Charter requires a two-step analysis. So

does the Oakes test. Step 1 of the Oakes test requires that the government

prove that the objective, or reason for the limitation on the Charter right, relate

to “a pressing and substantial concern”. This means, essentially, that the

Government must persuade the court that it is attempting to address a serious

public concern. It can’t just infringe Charter rights because it feels like it, in

other words. Usually, the government passes this step without much difficulty,

but not always.

7 R. v. Oakes, [1986] 1 S.C.R. 103. Oakes was not an employment law case, but the analysis applies to all Charter cases.

7

7

If the court accepts that the purpose of the government action is to

address a pressing and substantial concern, then the court will move on to Step

2 of the Oakes test, which is known as the proportionality test. This is where a

lot of Charter challenges are won and lost. Here is how the Supreme Court

described the proportionality test in Oakes: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. [the “Rational Connection” test]. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question [the “minimal impairment test”]. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". [the “balance of harm” test]

There have been dozens of court cases in which a Charter right was infringed by

the government, but nevertheless the government’s actions were “saved by

Section 1”. Some of those cases have related to workplace law, as we will see

below. When we say that the Charter infringement was “saved by section 1”,

what we mean is that the infringing law or action of the government is lawful,

and need not be changed.

On the other hand, if the Court finds that a violation of a Charter right or

freedom is not saved by Section 1, it will usually order that the government’s

actions were unlawful and must be undone. That is, if the violation was in the

form of a law that violated the Charter, that law will be “stuck down” as illegal,

although sometimes the Court will give the government a period of time to fix

the situation.

3. What Rights and Freedoms Found in the Charter Apply to the

Employment Relationship

The Charter includes a set of fundamental rights and freedoms. Several of

them have application to the employment relationship. I will deal first with the

Section 2 “fundamental freedoms”, which include most notably for our purposes,

David J. Doorey

8

“freedom of expression (section 2(b)) and “freedom of association” (section

2(d)). These sections have been at the centre of much debate about the role (or

lack thereof) of unions and collective bargaining in Canadian society. I will then

review Section 15 (equality rights), which despite some initial promise, has had

relatively little impact on labour law. My objective is to quickly review how

these sections have influenced the employment relationship.

A. Freedom of Association (Section 2(d))

“Art. 2: Everyone has the following fundamental freedoms: … (d) freedom of association.”

Take a deep breath; grab some coffee. This will be painful, I’m afraid.

Section 2(d) of the Charter says simply that everyone has “freedom of

association”. Freedom. Of. Association. What do those three words mean? That

seemingly straightforward question has proven to be one of the most mystifying

Charter questions in the realm of employment relations.

Think about the possibilities. It could mean simply a freedom for

employees to form and join a union, like starting a poker club and asking people

to join. That’s a very narrow interpretation. Now, start to go wider. Does

freedom of association (“FA”) also include a freedom to play poker, since why

else would someone form and join a poker club if not to play poker? To bring it

back to employment, does it include not only the freedom to form and join a

union, but also the freedom to do the very things that unions do: engage in

collective bargaining on behalf of workers, lobby governments for legal reforms

helpful to workers, strike to win better conditions of work for employees?

Imagine you have a bucket that represents FA. Now, imagine there are

sticks scattered around the yard that represent specific freedoms—the freedom

to form a union; the freedom to join a union; the freedom to engage in collective

bargaining; the freedom to strike, and other specific freedoms that could

possibly fall with the broad phrase “freedom of association”. The debate is what

9

9

bundle of those individual freedoms should be placed into the FA bucket, and

which should be left to rot in the yard.

This question has been the subject of legal battles for decades. The fact

that FA includes at least a freedom to form a union, and to join it was settled

early on. Much more contentious has been the debate over whether FA also

includes the freedom to collective bargaining and to strike. In relation to the

collective bargaining at least, this controversy is somewhat surprising because

during the debates leading up to the creation of the Charter, the government

representative very clearly stated that “freedom of association” includes a

“freedom to organize and bargain collectively”.8 Nevertheless, when the scope

of FA reached the Supreme Court of Canada for the first time, it rejected this

position and found that FA does not include a freedom to collective bargaining or

to strike.

The Labour Trilogy (1987) and PIPSC (1990)

The first set of cases to reach the Supreme Court became known as the

Labour Trilogy, because it involved three decisions released simultaneously in

1987.9 The key question was whether freedom of association included a right to strike. The Court ruled that it did not. Several years later, in PIPSC v. NWT

(Commissioner), the Court added that FA also does not include a right to

collective bargaining.10 The Court in these cases applied a very narrow

definition of freedom of association. It included, essentially, a right to form and

join associations. It also included the right to do as a group those things that

individuals have a legal right to do. But it did not protect the activities that by

their nature are “collective” activities, into which the Court placed “collective

bargaining” and “strikes” on the theory that these activities were inherently

8 Robert Kaplin, the Acting Minister of Justice, said this: “Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that it is already covered in the freedom of association already in.” See discussion in Pothier, supra note at 371-72. 9 Re Public Sector Service Employee Relations Act, [1987] 1 S.C.R. 313 [known as the Alberta Reference case]; P.S.A.C. v. Canada, [1987] 1 S.C.R 424; R.W.D.S.U. v. Sask., [1987] 1 S.C.R. 460. 10 [1990] S.C.R. 367

David J. Doorey

10

“collective” activities.11 Since the Charter did not protect collective bargaining

or strikes, governments were free to restrict or prohibit both.

Dunmore (2001)

However, in 2001, the Supreme Court decided to revisit its narrow

definition of “freedom of association”. In a case called Dunmore, the Court ruled

that FA also includes protection of some activities that are inherently collective activities, such as “making collective representations to employers”.12

Dunmore involved the exclusion of “agricultural workers” from the Ontario

Labour Relations Act (LRA). The Court ruled that, in order for agricultural

workers to be able to exercise their Charter right to make collective representations to their employer, they needed the government to protect them

from their employers, who might not like that idea, and might be inclined to

threaten, intimidate, or dismiss the workers so that they do not consider acting

collectively. The LRA’s unfair labour practice sections would achieve this, but

the Ontario government had excluded agricultural workers from those

protections in order to protect “the family farm” from the costs and potential

interruptions sometimes associated with collective bargaining.

Dunmore is a tricky case to understand. This is because it wasn’t obvious

what the government “action” was. Remember, the Charter only regulates

governments. Keep in mind what the workers argued in the case: their claim

was that they can’t join unions and make collective representations to the

employer because their (private sector) employers might threaten or dismiss them, and there was no law stopping their employers from doing that because

the government had excluded agricultural employers from the unfair labour

practice provisions that apply to most other employers. In other words, the

argument was that the government action consisted of a failure of the government—an “omission”—to apply the unfair labour practice sections in the

Labour Relations Act that apply to most other workers to agricultural workers.

11 This approach has been heavily criticized by academics. For example, individuals have a legal right to bargain with their employers, so some academics questioned why then, applying the courts’ own reasoning, they do not have a right to bargain with their employers collectively. 12 Dunmore v. Ontario (Attorney-General), [2001] 3 S.C.R. 1016

11

11

The Court ruled in Dunmore that when a government creates a protective

legal regime—like the Labour Relations Act—it can’t then exclude some workers

from the protections if doing so “substantially interferes” with the ability of

those workers to exercise the rights protected by freedom of association. Since

agricultural workers had proven unable to form unions and make collective

representations to their employer without protections against employer

interference, excluding them from the statutory protections afforded other

workers was a violation of Section 2(d). On the other hand, if excluding

workers from a protective labour law regime does not “substantially interfere”

with the ability of workers to form unions and make collective representations

to their employer, then Section 2(d) is not infringed. Therefore, in a case called

Delisle v. Canada, the Court ruled that excluding the RCMP from labour

legislation did not violate Section 2(d) because police, unlike agricultural

workers, had proven capable of forming strong unions without government

protections.13 You follow that?

The breach of Section 2(d) in Dunmore was not “saved” by Section 1.

The Ontario government was unable to convince the Court that an exclusion of

all agricultural workers from legislative protections available to other workers

was a proportional response, even if protecting family farms were a valid

objective. The exclusion failed the “minimum impairment” part of the Oakes

test. Protecting the family farm from effects of unionization, even if a valid and

pressing objective, does not require an absolute ban on the rights of all

agricultural workers to form associations without employer interference. Many

farmers are now in fact giant corporations, not ma and pa operations. There is

no obvious reason why those employers need to be protected from unionization

and collective bargaining, according to the Supreme Court.

Fraser (Lower Court) (2005)

This is not the end of the story about freedom of association and

agricultural workers. The remedy in Dunmore consisted of an order for the

13 [1999], 2 S.C.R. 989

David J. Doorey

12

government to pass a law that protects agricultural workers’ right to form and

join unions and make “collective representations” to their employers, free from

interference by their employers. The Ontario government responded by passing

a statute known as the Agricultural Employees Protection Act, which did

precisely as the Supreme Court ordered, and nothing more. It said that

agricultural workers have a right to form and join unions and that it is illegal for

an employer to threaten or retaliate against workers who exercise these rights.

It also said that workers have a right to make “collective representations” to

their employers, but the only obligation on the employer was to listen to those

representations. It could then tell the union or workers to get lost. The new

statute that applied to agricultural workers did not include a “duty to bargain in

good faith”, which was the requirement of all other employers covered by the

Labour Relations Act. The agricultural workers filed a new Charter challenge against the AEPA,

a case known as Fraser v. Ontario, sometimes called colloquially “Dunmore,

Part II”. They argued that absent a duty to bargain, the new statute also does

not enable agricultural workers to effectively make collective representations to

their employers, since employers can and will just tell the workers to get lost.

That case reached the lower court of Ontario in 2005, and the judge ruled that

the statute conformed with what the Supreme Court had ordered in Dunmore.14

The workers appealed. Then something unexpected happened.

B.C. Health Services (2007)

The Supreme Court of Canada released a surprising decision in 2007

known as B.C. Health Services.15 In this new case, the B.C. government had

passed a law that suspended collective bargaining in the health sector,

unilaterally imposed new collective agreement terms and cancelled others, and

prohibited the right of unions to bargain about some topics, all in an effort, the

government claimed, to deal with a crisis of medical costs in the province. The

Supreme Court was not impressed with the government’s actions. However, if 14 [2006] 79 O.R. (3rd) 219 (Ont. Ct. Sup. Ct) 15 Health Services and Support – Facilities Subsector Bargaining Association v. B.C. [2007], 2 S.C.R. 391.

13

13

the Charter did not protect collective bargaining, then a government would be

free to rip up collective agreements and restrict collective bargaining by passing

laws like this. How then had the B.C. government violated Section 2(d)?

To the general surprise of the labour law community, the Court ruled that

it was time to recognize a limited right to collective bargaining under Section

2(d). It turns out that the Court had been wrong back in the PIPSC decision in

1990 when it had ruled that Section 2(d) did not include a right to collective

bargaining. Now the Court said that Section 2(d) includes at least an obligation

on governments to consult and “bargain” with unions before passing laws that

negatively impact collective bargaining and collective agreements, and to

bargain with them. The B.C. government had violated Section 2(d) by ignoring

and ripping up collective agreements without consulting with the unions, and its

actions were not saved by Section 1 and the government’s concerns about

cutting costs in the public sector.

Significantly, the Court also ruled that Section 2(d) should be interpreted

so as to provide “at least the same level of protection” as do international labour

law instruments that Canada has endorsed. That’s interesting, because Canada

has ratified Convention 87, on Freedom of Association and the Protection of

the Right to Organize of the International Labour Organization. That

Convention includes a robust right of virtually all workers to engage in

collective bargaining, and a right to strike that should not be restricted, except

when the public’s life, safety, or health would be put at serious risk by a work

stoppage. This last statement created a buzz in the labour law community that

the Supreme Court will soon revisit its 1987 Labour Trilogy and rule that

Section 2(d) does protect some form of a right to strike. If Section 2(d) does

include a right to strike, then this may seriously limit the ability of governments

to pass “back to work” legislation, for example, which is a very common

response in Canada to public sector strikes. However, as of now, there is still no

Charter right to strike.

David J. Doorey

14

Fraser (Court of Appeal) (2009)

Let’s return now to Fraser v. Ontario. By the time the case was argued

before the Ontario Court of Appeal, B.C. Health Services had been decided. That

dramatically changed the legal landscape for the Court of Appeal. Now there

was a constitutional right to collective bargaining. The Court of Appeal took that

ball and ran with it. It bent over and scooped up a bunch of new sticks from the

yard and threw them into the proverbial freedom of association bucket. The

Court of Appeal ruled in Fraser that Section 2(d) included: a duty for employers

to bargain in good faith; an obligation to protect the “majoritism” principle built into the Canadian labour law model (the idea that employers have a duty to

bargain once a majority of employees in a bargaining unit express their desire

for union representation); and some mechanism for resolving bargaining disputes, such as interest arbitration.16 This decision has been described by one

leading scholar as the “constitutionalization of the Wagner Model”.17 In other

words, it appears to create a Charter right to the key features of the Labour Relations Act. The Court of Appeal decision was appealed to the Supreme Court,

which heard argument in 2009, but has not released its decision at the time of

writing this paper. The labour law community is eagerly awaiting that decision.

Perhaps it will clarify the hodge-podge set of rules that now comprise Section

2(d).

Freedom to NOT Associate?: Lavigne (1991), Advance Cutting and Coring (2001) Two final cases are worthy of note, because they raise the question of

“negative freedom of association”—the right not to associate. If you have

freedom to association, do you not also have the freedom not to associate? Two

common practices in labour law have been challenged as amounting to “forced”

association contrary to Section 2(d). The first was Lavigne v. OPSEU, which I

mentioned earlier.18 In that case, an employee of a college was covered by a 16 Fraser v. Ontario (A.G.), (2009) 92 O.R. (3d) 481 (C.A.) 17 B. Langille, “The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It”, (2009) 54 McGill Law Journal 177 18 Supra note 2.

15

15

collective agreement that required all bargaining unit employees to pay union

dues. This is a common collective agreement term in Canada that has legislative

support.19 Lavigne argued that his employer (the government) had violated his

freedom of association by agreeing to a contract clause that obliged him to pay

union dues, a portion of which were then used by the union to fund some causes

with which Lavigne didn’t agree, including funding the New Democratic Party.

The Supreme Court ruled that the collective agreement clause did not

violate the Charter rights of Lavigne, though the judges disagreed on why. Some

(4) of the judges ruled that the requirement for Lavigne to pay money towards

causes he didn’t agree with did violate Section 2(d), but that the violation was

“saved” by Section 1, because unions serve an important function in society in

contributing to public debate. Another three judges ruled that Section 2(d)

wasn’t violated at all, since freedom of association does not include a freedom

not to associate.

The second case raising the issue of the freedom not to associate was

called R. v. Advanced Cutting and Coring Ltd.20 That case challenged Quebec

legislation that required construction workers to join one of five unions. In

other words, if you wanted to work in construction in Quebec, you needed to join

a union. Did this “compulsory unionism” violate a freedom not to associate?

The judges decided it did not, but as in Lavigne, there was profound

disagreement on why. Eight of the nine Supreme Court judges ruled that

Section 2(d) does include a right not to associate. Five of the nine judges ruled

that that right was violated in this case, but by a score of 5 to 4, the Court ruled

ultimately that the violation was saved by Section 1, on the basis that there

were important characteristics of the Quebec construction industry that

justified the infringement. How’s that for confusing?

19 These mandatory dues clauses have been considered legal in Canada for many years, since Justice Rand explained in 1946 that since all unionized workers benefit from the activities of the unions, they should all be required to pay their fair share of the union’s costs, even if they are not required to actually “join” the union. This recommendation was legislated in the form of what we call today the “Rand Formula”, such as Section 47 of the Ontario Labour Relations Act. 20 [2001] 3 S.C.R. 209

David J. Doorey

16

Conclusion on Section 2(d)

So, to conclude, where are we on Section 2(d)? It’s a big mess, to be honest.

I’ll try to summarize based only on what the Supreme Court of Canada has said

so far (I will not include what the Ontario Court of Appeal said in Fraser, because

some or all of that may be overturned at any moment by the Supreme Court):

• Section 2(d) protects a right to form and join a union, and a limited right

to collective bargaining, including a duty on the employer to consult with

unions and bargain in good faith

• When the employer is the government, these rights apply directly, so that

a public sector employer cannot interfere with the right to unionize or

refuse to engage in collective bargaining

• Governments have no obligation at all to pass laws to protect private

sector employees’ ability to exercise their freedom of association.

However, if a government does pass laws that protect a right of some

workers to unionize or engage in collective bargaining, it cannot randomly

exclude some workers from those protections if doing so would

“substantially interfere” with the ability of the excluded workers to form

or join unions or engage in collective bargaining.

• Exclusion from a protective labour law model is more likely to

“substantially interfere” with the freedom to associate in the case of

“vulnerable” workers, such as agricultural workers.21

21 In a case called Delisle v. Canada, [1999] 2 S.C.R. 989, the Court ruled that the exclusion of the R.C.M.P. from the protections in labour legislation does not violate Section 2(d) because, unlike agricultural workers, the police have demonstrated an ability to form strong unions without the aid of protective labour legislation.

17

17

• There is some form of a right not to associate protected by Section 2(d),

but the scope of that right is still unsettled.

• There is no Charter right to strike. Yet.

Are you having fun yet? I told you this is confusing. This is why many

academics and lawyers have criticized the courts for their piecemeal approach

to developing freedom of association.

B. Freedom of Expression (Section 2(b))

The Courts’ approach to freedom of expression is somewhat easier to

understand, at least in terms of figuring out what Section 2(b) includes. This is

because, unlike in the case of Section 2(d), the Court has interpreted freedom of

expression very broadly. In essence, if something conveys meaning in a non-

violent manner, it has usually been found to fall within the scope of protected

expression in Section 2(b). Thus, in an early Charter case called Dolphin Delivery, the Supreme Court ruled that peaceful labour picketing is protected

“expression” under Section 2(b) because it conveys meaning.22

Most of the fights under freedom of expression take place under Section 1

as the government attempts to justify limitations placed on expression. Under

Section 1, the courts in the past considered the fact that some expression—most

notably, “picketing”—conveys meaning beyond the actual words stated or

written on a placard. Courts have noted that picketing has a “signaling” effect.

The Supreme Court wrote in 1999 that labour picketing often causes “an

automatic reflex response from workers, suppliers, and consumers”, which the

22 RWDSU, Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573. I will focus on picketing in this section of the paper. However, freedom of expression comes up in other aspects of labour law as well. One example was in the Lavigne case discussed above. There the Court ruled that Lavigne’s freedom of expression was not infringed when he was forced to pay money towards causes he disagreed with. This is because nothing prevented him from expressing his views on the issues even if they were contrary to the union’s views. Forcing someone to pay money to a cause does not mean that the person is being forced to agree with the causes.

David J. Doorey

18

Court felt “discourages some people from making rational choices based on

persuasive discourse”.23 In other words, when people “see” a picket line, what

they “hear” is: don’t you dare cross this line. Picketing at or near the premises of the employer during a legal strike or

lockout has been given broad protection in our legal model. As long as it is done

in a manner that is not itself unlawful (not criminal and not a tort like

“obstruction”), it is permissible. Picketing at locations other than the employer

that is directly involved with the labour dispute is known as secondary

picketing”. Courts have been less protective of this type of picketing.

Secondary picketing makes sense for unions sometimes. For example, picketing

a struck employer’s suppliers or customers could put pressure on the struck

employer to reach a deal with the union. However, courts historically have

tried to prevent or at least limit the harm done to “third parties” to a labor

dispute by placing limits on the right to secondary picketing.

The tricky part of understanding the legal restrictions on secondary

picketing is to note that the main legal restriction in many provinces has been a

common law rule, not government legislation. There was a rule made up by

judges back in the 1960s that all secondary picketing is illegal, period.24 That

was twenty years before the Charter came into force. But even after the Charter

created a constitutional freedom of expression, the rule that all secondary

picketing was illegal remained. The problem for unions that wanted to challenge

the rule was that it was not a “government” rule. It was a judge-made rule, and

the Supreme Court decided in 1986 that the Charter does not apply to judge-

made (common law) rules.25 How convenient that the judges decided that the

Charter does not apply to rules made up by judges! The result was that there

was no way for unions to challenge the common law rule that all secondary

picketing was illegal (even if legitimate expression was taking place at these

secondary sites).

23 Kmart v. UFCW, Local 1288P, [1999] 2 S.C.R. 1083. 24 Hersees of Woodstock v. Goldstein, [1963] 2 O.R. 81 (C.A.) 25 Dolphin Delivery, supra note .

19

19

Then, in a case called Pepsi-Cola Canada in 2002, the Court did

something interesting and unexpected. It ruled that, even though the Charter

does not apply directly to common law rules, common law rules should

nevertheless develop in a manner consistent with “Charter values”.26 It

decided that the absolute ban on secondary picketing in the common law was

inconsistent with the value of freedom of expression we recognize in Canada

today. The case involved picketing by striking Pepsi workers at customers of

Pepsi. The Court ruled that workers ought to be able to picket at retail stores

that sell Pepsi products, as long as the picketing was conducted peacefully and

lawfully. As a result, the rule today is that all labour picketing associated with

a lawful strike (or lockout) is legal, unless the manner in which it is done is

illegal. The two most obvious ways that picketing would become illegal is if it

involved violence or threats of violence (which would be a crime), or if the

picketers physically obstruct people from crossing the picket line (although

there are other ways as well).

In the result, as we saw in our discussion of freedom of association, there

has been a recent movement by the Supreme Court toward recognizing broader

worker rights. This does not mean that limitations cannot be placed on picketing

expression. Legislation that restricts peaceful picketing will now likely violate

Section 2(b). However, some limitations on the right to expression through

picketing will still likely be upheld, or “saved” under Section 1. For example, in

BCGEU v. British Columbia, the Supreme Court ruled that a restriction on

picketing in front of courts violated Section 2(b), but was saved by Section 1,

because the need to ensure access to justice was pressing and substantial and

justified a restriction on expression.27

26 Pepsi-Cola Canada v. RWDSU, Local 558, (2002) 208 D.L.R. (4th) 385 (S.C.C.) 27 [1988] 2 S.C.R. 214.

David J. Doorey

20

C. Equality Rights (Section 15)

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

1. Enumerated and Analogous Grounds

Section 15 sets out fundamental equality rights. Read the language

carefully. The words before the first comma [Every individual is equal before and

under the law and has the right to the equal protection and equal benefit of the law

without discrimination] appear not to depend on what follows afterward. That is

because the next phrase, “in particular”, suggests that the list of grounds that

follow are just some examples of the sorts of discrimination that the Section

prohibits. In other words, you could read Section 15 as guaranteeing that

everyone has a “right to equal protection and equal benefit of the law without

discrimination”, even if the basis for the discrimination is not one of those

grounds in the list that follows.

However, the courts have not interpreted Section 15 in that manner.

Instead, they have taken a more narrow view of equality rights. In general

terms, the courts ask whether the state has differentiated among people on the

basis of a protected ground in a manner that undermines human dignity.28

Protected grounds include both “enumerated” ground (i.e. the grounds listed in

Section 15, such as race, colour, sex, et cetera), and “analogous grounds”.

Analogous grounds are those that the court has added to the enumerated list

over time on the basis that they reflect a characteristic of a person that is

unchangeable (immutable), or at least extremely difficult to change, and

deserving of protection. For example, the Supreme Court has added “sexual 28 The precise “test” for Section 15 equality cases is described in the non-labour case Law v. Canada [1999] 1 S.C.R. 497. It is a difficult test, and for our purposes here we do not need to analyze it in detail, since Section 15’s influence on labour law has been limited.

21

21

orientation”29 and “marital status”30 as analogous grounds, which has resulted

in those grounds being added to the list of protected grounds in human rights

codes across Canada.

2. Section 15 and Individual Employment Law

Section 15 has not had a significant impact on the individual employment

relationship. Part of the reason is that the Charter does not apply directly to

common law rules, and much of Canadian employment law is based in common

law rules. So, for example, the Charter does not apply to the manner in which

judges decide how much “reasonable notice” is required to dismiss an employee,

or to a decision of a judge finding that an employer had “cause” to dismiss an

employee without notice, or to a ruling that the employer has violated an

employment contract in some other manner.

Occasionally, employment legislation has been challenged under Section 15.

For example, the Supreme Court ruled in a case called Vriend v. Alberta that the

Alberta human rights legislation infringed Section 15 because it did not prohibit

discrimination in employment on the basis of “sexual orientation”, an analogous

ground guaranteed in Section 15.31 Also, the rule permitting forced or

“mandatory” retirement of employees 65 or older in some Canadian human

rights codes has been challenged as a breach of the Section 15 on the basis of

“age”.32 In McKinney v. University of Guelph, the Court accepted that human

rights laws that permit discrimination against workers 65 or older violated

Section 15. However, that infringement was “saved” in that case by Section 1.

29 Vriend v. Alberta, [1998] 1 S.C.R. 493 [a gay teacher challenged his dismissal from a Catholic school under provincial human rights code, but the case was dismissed because “sexual orientation” was not a listed ground in the code. He then filed a Charter challenge against the Alberta government for not including “sexual orientation” in the code. The Supreme Court ruled that “sexual orientation’ was an analogous ground, and ordered the Alberta government to add it to the human rights legislation. 30 The Supreme Court ruled that laws or employment practices by government employers that treat married people differently than non-married people would violate Section 15, since “marital status” was an analogous ground: Miron v. Trudel, [1995] 2 S.C.R. 418 31 [1998] 1 S.C.R. 493 32 McKinney v. University of Guelph, [1990] 3 S.C.R. 229

David J. Doorey

22

The government’s pressing objective was to strike a delicate balance between the

needs of older workers to receive adequate pensions and incomes against the

need to ensure job opportunities for young workers entering the workforce. Note

that most Canadian governments have nevertheless moved away from

mandatory retirement policies in their human rights legislation in response to an

aging labour force and feared labour shortage.

3. Section 15 and Collective Labour Rights

Section 15 has also not proven to be terribly important to the area of

collective employment relations. Unions have tried to argue that Section 15

equality rights should protect vulnerable workers who have been excluded from

protective labour legislation. For example, it was argued in the Dunmore and

Fraser cases that the exclusion of “agricultural workers” from the protections

afforded most other workers in the Ontario Labour Relations Act violated

Section 15 as well as Section 2(d) freedom of association. The argument was

that “vulnerable workers” should be recognized as an analogous ground. If that

were the case, then it would be a breach of Section 15 for a law to treat

agricultural workers differently than everyone else. However, courts have

consistently found that occupational status is not an analogous ground.33

Some leading Canadian labour law scholars have criticized the position of

the courts that Section 15 does not apply to laws that distinguish amongst

occupations. For example, Brian Langille34 and Diane Pothier35 have argued

that once a government elects to confer labour rights on some employees—like a

right to collective bargaining or to strike—it should be considered a violation of

Section 15 for the government to then exclude those same rights from other

workers. In other words, they argue that the government doesn’t have to grant

33 Fraser v. Ontario, (2006) O.J. No. 45 (Ont. Court of Appeal); B.C. Health Services v. B.C. [2007], 2 S.C.R. 391; Reference re Workers’ Compensation Act, 1983 (Nfld.) [1989] 1 S.C.R. 922. 34 See B. Langille, “The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It” (2009), 54 McGill Law Journal 177. 35 D. Pothier, “Twenty Years of Labour Law and the Charter” (2002), 40 Osgoode Hall L.J. 369.

23

23

any workers a legal right to strike, but once it elects to create a right to strike, it

can’t just pick and choose which employees get it. It should be discriminatory (a

violation of Section 15) to confer rights on some workers and not others, and the

state should be required to justify its decision to exclude only some workers

according to the Section 1 standard (the Oakes Test). But, to date, the courts

have rejected that argument.

Conclusion

As you have no doubt concluded, this attempt to simplify the Charter’s

influence on labour and employment law has proven a challenge.

Understanding the Charter requires much study and concentration. Hopefully, I

have achieved my objective in some measure. If nothing else, it should be

apparent that the Charter is a complex document notwithstanding the simple

language it employs. To date, the influence of the Charter on the workplace has

been minimal, despite the wealth of decisions and resources spent on Charter

litigation. We may be in the middle of a Charter resurgence that will forever

redefine workplace law. Then again, maybe not.